1 S.W. 288 (Mo. 1886), State v. Leabo

Citation:1 S.W. 288, 89 Mo. 247
Opinion Judge:Henry, C. J.
Party Name:The State v. Leabo, Appellant
Attorney:Holcomb & Silvers for appellant. B. G. Boone, Attorney General, for the state.
Case Date:June 21, 1886
Court:Supreme Court of Missouri
 
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Page 288

1 S.W. 288 (Mo. 1886)

89 Mo. 247

The State

v.

Leabo, Appellant

Supreme Court of Missouri

June 21, 1886

Appeal from Bates Circuit Court. -- Hon. James B. Gantt, Judge.

Affirmed.

Holcomb & Silvers for appellant.

(1) The defendant was entitled to a special venire. He made timely application for it, accompanied with his affidavit. R. S., secs. 2802, 3894; Samuels v. State, 3 Mo. 68; State v. Jones, 61 Mo. 232; Fulweiler v. St. Louis, 61 Mo. 479. (2) In determining the competency of jurors the court erred in permitting them to be examined on their voir dire, against the objection of defendant, as to whether they would convict of murder in the first degree upon circumstantial evidence alone. The court is asked to overrule State v. West, 69 Mo. 401, on this point. The oral definition or instruction of the prosecuting attorney and the court defining circumstantial evidence was erroneous and should not have been given. The court can only declare the law by written instructions. (3) The court erred in permitting the state to introduce expert testimony in regard to the condition in which the body of Mrs. Leabo was found on the second post mortem, held December 28, eight days after the first examination was made. This examination was ex parte. Whar. Crim. Ev. [8 Ed.] secs. 421, 422; 2 Whar. and S. Med. Jur., part 2, sec. 1246; Rogers' Expert Testimony, p. 20, sec. 14. (4) The instructions were all erroneous, except the seventh, as there was no sufficient evidence offered against the defendant to rest a verdict of guilty upon. (5) The first instruction directs the jury to find a verdict of guilty, if they believe from the evidence that the defendant first choked his wife to death and then drowned her in a well. This is an absurdity. Wood v. Steamboat, 19 Mo. 529; Young v. Ridenbaugh, 67 Mo. 574; Belt v. Goode, 31 Mo. 128; Clark v. Kitchen, 52 Mo. 316; State v. Simms, 68 Mo. 305. (6) All the instructions asked by defendant should have been given. (7) Error was committed in allowing the prosecuting attorney to refer in his closing argument to the verdict of the former jury that had tried and convicted defendant. R. S., sec. 1965; State v. Cooper, 45 Mo. 64; State v. Alexander, 66 Mo. 148; State v. Lee, 66 Mo. 168; State v. Kring, 64 Mo. 591; State v. Johnson, 76 Mo. 121. (8) The verdict was contrary to the evidence and was erroneous. State v. Packwood, 26 Mo. 340; State v. Daubert, 42 Mo. 242.

B. G. Boone, Attorney General, for the state.

(1) The application for a special venire was properly overruled, because it did not comply with Revised Statutes, section 2802, in not being made a sufficient length of time before the case was called for trial. Rose v. St. Charles, 49 Mo. 509. The court would not have been authorized in granting the order for a special venire simply on the naked affidavit of defendant. State v. Wisdom, 84 Mo. 185. (2) The definition of circumstantial evidence by the trial court was correct. It was as follows: "Circumstantial evidence is that kind of evidence in which the fact to be proved is not directly attested by those who speak of it from their own actual and personal knowledge of its existence, but it is to be inferred or proved from the existence of other facts satisfactorily established. The circumstances proved should establish defendant's guilt beyond a doubt, and point so clearly to his guilt as to exclude every other reasonable hypothesis." 1 Bouvier's Law Dic. [12 Ed.] title Evidence, 545; Burrill Cir. Ev. [2 Ed.] pp. 7, 8, 77; Com. v. Webster, 5 Cush. 295; Howard v. State, 34 Ark. 440; Eberhardt v. Sanger, 51 Wis. 78; Com. v. Sturtivant, 112 Mass. 122; vide the charge to the jury by Wells, J., in the Sturtivant case in appendix to Wharton on Homicide [2 Ed.] 745. (3) No error was committed in challenging members of the panel from which the trial jury was selected who answered that they would not find one, accused of murder, guilty, on circumstantial evidence alone. State v. West. 69 Mo. 401; State v. Mann, 83 Mo. 589. (4) The testimony of the physicians who made the second examination of Mrs. Leabo's body was competent. There is nothing to indicate that it was not a fair and impartial autopsy, and its accuracy or authoritativeness could not have been enhanced by notice to the defendant. Whar. on Crim. Ev. [8 Ed.] sec. 421; State v. Bowman, 80 N.C. 432; Boyle v. State, 61 Wis. 447; 2 Whar. and Stil. Med. Jur., part 2, sec. 1247; Rogers' Expert Testimony, sec. 14. The witnesses who testified as to the wounds on the neck were all medical men, and their testimony was admissible, whether defendant had notice of the autopsy or not. Whar. Crim. Ev., sec. 412; Ebos v. State, 34 Ark. 520...

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